Negotiating Co-Counsel Arrangements

Co-counsel arrangements can be a great way to expand your practice. Negotiating the best arrangement involves knowing the right questions to ask.

Check out prospective co-counsel

Do your homework. Investigate the lawyer ahead of time by searching Avvo.com and Martindale.com. Call your lawyer friends and colleagues. Check for professional discipline through the state’s Supreme Court attorney registration or bar association, as well as Avvo. Ask the prospective co-counsel for attorney references and call those people. It would not hurt to research the references to determine their credibility.

Verify malpractice coverage as both lawyers can be held responsible for malpractice in a co-counsel relationship. Ask the prospective co-counsel for a copy of the current endorsement page of his or her malpractice policy.

Spend some time together to see if you can have a productive and comfortable working relationship. Sit down and decide who will be in charge of the file and who will be the point person with the client. Determine if you will have the same approach and strategy and whether you are philosophically aligned on the file. Discuss the division of the workload and define responsibilities. After analyzing these issues, you will have a good idea of whether or not you can work well together.

Head off fee disputes

Most disputes in co-counsel arrangements revolve around fees. (No big surprise there.) So how do you avoid those disputes? First and foremost, enter into a written agreement. Whether you can come to terms in negotiating that agreement will also help determine whether you can work well together. Several questions must be addressed regarding fees. Determine how the work will be divided and who gets paid what and when. Decide who will hold the retainer in trust and who will send the bill to the client. Establish how expenses will be billed and paid, as well as who discusses with the client whether to incur expenses. Create a formula to determine who will be paid what amount if there is an outstanding balance and a partial payment is made. Agree on a mechanism to be used in the event of a fee disputes.  If the case involves a contingent fee, the fees division should be consistent with the work division. Fee splitting rules in each jurisdiction must be followed.

Make an honest assessment

If you do your homework, you are more likely to have a successful co-counsel relationship. And if you didn’t do your homework, you can’t say you weren’t warned!

(Photo: http://flic.kr/p/6rUPaH)

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  • Great points, Susan. I think it is important for lawyers to also distinguish between a co-counsel arrangement and hiring a contract lawyer to work on a case. With co-counsel, the client essentially has 2 lawyers or law firms working on the case and both have duties to the client. In the event of a dispute between the lawyers, one lawyer may not have the power to “fire” the other lawyer; that right probably belongs to the client.

    When hiring a contract lawyer, the hiring lawyer has much more control over the case and the other lawyer’s work. There are still issues to cover regarding how the lawyer will be paid and disclosure to the client, but the hiring lawyer has more ability to run the show. That may be an important consideration in deciding whether a co-counsel relationship is appropriate.

  • Eric,
    You are absolutely correct. The situation is quite different if it is a contract lawyer relatioship.

  • BullIsland

    local counsel in a recent case breached the retainer agreement by simply mailing me a check for the client’s share (he evidently felt the work he did justified the entire fee). Since the money came from his escrow account, didn’t he have a fiduciary duty to hold all funds (including my share) until agreement was reached in writing as to distru=iubution?

  • Ben

    Can anyone recommend a book or website that has precedent co-counsel retainer agreements, fee agreements, etc.